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Court of Criminal Appeal 24 July 2015

El-Zeyat v R; Aouad v R; Osman v R

[2015] NSWCCA 196

Homicide
APPEAL SENTENCING TWO COUNTS OF MURDER NO ERROR DEMONSTRATED APPEAL SENTENCING SENTENCING

Citation: El-Zeyat v R; Aouad v R; Osman v R [2015] NSWCCA 196
Court: Court of Criminal Appeal, NSW
Date: 24 July 2015
Judges: Leeming JA; Simpson J (principal judgment); Button J

Background

Three co-offenders, convicted in 2006 following a joint trial before Bell J in the Supreme Court, sought leave to appeal against their sentences nearly eight years after sentencing. A jury had found each of them guilty of the murders of two victims on 14 October 2003. Two of the three applicants had also previously been convicted of a separate murder committed a fortnight later, but those convictions were quashed on appeal in 2011, and the Director of Public Prosecutions subsequently directed that no further proceedings take place on that count.

Bell J sentenced two of the applicants to life imprisonment on each count of murder. The third applicant received sentences totalling 30 years with a non-parole period of 25 years. None of the applicants had pursued sentence appeals when their conviction appeals were heard in 2011.

The applicants applied for extensions of time to appeal, filing their notices between October and December 2013, more than seven years after sentencing. Each offered affidavit evidence to explain the delay.

  • Whether the Court should grant extensions of time to appeal against sentence, having regard to the interests of justice under Kentwell v The Queen [2014] HCA 37
  • Whether the sentencing judge erred in assessing the objective seriousness of each murder
  • Whether the sentencing judge erroneously took into account a subsequently abandoned murder charge
  • Whether the judge failed properly to take into account the applicants' youth and immaturity
  • Whether the parity principle applied to the two applicants sentenced to life imprisonment when compared to the third applicant's fixed-term sentence
  • Whether the sentencing of the third applicant involved "Muldrock error" by misapplying the standard non-parole period provisions as they were later declared to have been misunderstood before Muldrock v The Queen [2011] HCA 39

Decision

Extension of time. The Court granted extensions of time to all three applicants. Although the delay was significant, the Court accepted that two of the applicants had reasonable grounds not to act while their Fahda murder convictions remained current, and that delay after June 2012 was partially explained, if not wholly persuasively. For all three applicants, the absence of prejudice to the Director, the gravity of the offences, and the length of the sentences weighed in favour of permitting the applications to proceed.

Objective seriousness and the abandoned charge. The Court rejected the argument that the sentencing judge had erred by taking into account the subsequently abandoned murder charge when assessing the seriousness of the two charged murders. The judge had properly evaluated the seriousness of each murder separately. No error in the approach to objective seriousness was demonstrated.

Youth and parity. The Court dismissed the argument that insufficient weight was given to immaturity, finding that Bell J had expressly recognised that factor. How much weight to afford immaturity is a matter for the sentencing judge, consistent with Bugmy v The Queen [2013] HCA 37. On parity, the Court held that where the culpability of two offenders each calls for the maximum sentence of life imprisonment, parity principles have no application: there is no relevant comparison to be drawn with a co-offender who received a lesser sentence.

Muldrock error. The Court found it difficult to escape the inference that the sentencing judge had fallen into Muldrock error in sentencing the third applicant. At the time of sentencing in 2006, the standard non-parole period provisions were applied in accordance with the then-prevailing understanding reflected in R v Way [2004] NSWCCA 131, an approach later declared incorrect by the High Court in Muldrock. Because the information before the Court of Criminal Appeal was stale and out of date after eight and a half years, the appropriate course was to set aside the sentences and remit for re-sentencing before a single judge of the Supreme Court.

Orders Made

El-Zeyat:
- Time to file application for leave to appeal extended to 23 December 2013
- Leave to appeal against sentence granted
- Appeal dismissed

Aouad:
- Time to file application for leave to appeal extended to 19 December 2013
- Leave to appeal against sentence granted
- Appeal dismissed

Osman:
- Time to file application for leave to appeal extended to 2 October 2013
- Leave to appeal granted
- Appeal allowed; sentences imposed by Bell J on 10 November 2006 set aside
- Matter remitted for re-sentencing to a single judge of the Common Law Division of the Supreme Court of NSW

Key Takeaways

  • Where two offenders' culpability each independently justifies the maximum sentence of life imprisonment, the parity principle has no application: there is no legitimate grievance arising from comparison with a co-offender who received a lesser fixed-term sentence.
  • Express judicial recognition of an offender's immaturity satisfies the sentencing obligation to consider that factor; the weight attributed to it remains within the sentencing judge's discretion, consistent with Bugmy v The Queen.
  • A sentence imposed under the standard non-parole period framework as it was understood before Muldrock v The Queen may constitute identifiable error, even where sentencing predated the High Court's correction of that understanding.
  • In dismissing appeals by two of the three applicants, the Court of Criminal Appeal confirmed that objective seriousness must be evaluated for each individual murder separately, and that an abandoned charge does not automatically infect the assessment of remaining counts.
  • The Court of Criminal Appeal may remit for re-sentencing to a single judge of the Supreme Court where relevant facts and circumstances are stale, even over the Director's opposition, provided that course serves the interests of justice.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 19A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A; s 61(1)
- Criminal Appeal Rules, r 3B
- Crimes (Appeal and Review) Act 2001, s 78
- Criminal Procedure Act 2005 (NSW), s 43

Cases:
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Aouad v R; El-Zeyat v R [2011] NSWCCA 61; 207 A Crim R 411
- Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62; 209 A Crim R 424
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465
- Ngo v R [2013] NSWCCA 142; 233 A Crim R 121
- R v Merritt [2004] NSWCCA 19; 59 NSWLR 557
- R v Hearne [2001] NSWCCA 37; 124 A Crim R 451